Employment Law for Non-Specialists

Introduction

No seminar of this kind can hope to do justice to the full body of employment law which has developed in New Zealand over the past 30 years. Prior to 1973, the common law provided the only significant avenue for redress for alleged breaches of employer or employee obligations; challenges to dismissals were largely confined to allegations that grounds for summary dismissal based on misconduct did not exist, or that inadequate notice of termination had been given. Employers rarely, if ever, sued employees for breaches of duty, except where there were allegations of breach of the duty of confidentiality or of an express restraint of trade covenant. In return for the obligation of an employer to pay agreed wages or salary, an employee owed a duty of fidelity.

It was not until the enactment of the Industrial Relations Act in 1973, and the creation of the statutory personal grievance regime, that the concept of unjustifiability in respect of an employer’s actions was introduced. Subsequently, the Court of Appeal articulated the implied term of mutual trust and confidence which impinges on every agreement between employer and employee. Since October 2000, all parties to employment relationships have been under a statutory duty to act in good faith in their dealings with each other.

In a relatively short time, therefore, the body of indigenous employment law has grown into vast proportions. The official Employment Reports of New Zealand have grown to 27 volumes since their inception in 1991; unreported decisions of the employment institutions are legion.

In this paper, and in our presentation, we hope to provide registrants with rudimentary information on the types of employment issue which are likely to arise most commonly in legal practice. Our aim is to assist you to identify those issues on which you can safely give advice, and those on which you may need to seek the help of a specialist. Following this approach, you will find a relatively limited discussion of the complexities of collective bargaining and a greater emphasis on issues arising in respect of individual employment agreements. Of necessity, much relevant information has been omitted.

As we have endeavoured to show, it would be a grave error of judgment to assume that the ordinary principles of contract would apply to employment agreements in the same way as they might to any commercial contract. The relevant statutory provisions, and the pervasive influence of the implied mutual duty of fair dealing, have a profound effect on issues arising in employment relationships. At the very least, you need to be aware of when and how these influences are likely to arise.

If there is any one rule of thumb which is of general application to all aspects of employment law, it is this: all parties to employment relationships must act in good faith and fairly and reasonably. In the absence of reference to specific authority, that should be your guide.
In endeavouring to cover this wide field adequately, we have drawn on previous NZLS seminar and conference papers. We extend our grateful thanks to the authors of the papers whose work is partly represented here, but accept full responsibility for any errors or omissions.

Kit Toogood QC
Kathryn Beck

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